The Issue The issues in this case are whether Respondent, Caren Christine Olsen (Respondent), committed the violations alleged in an Administrative Complaint issued April 20, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, as the Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate who are alleged to have violated the provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. At all times material to the allegations of this case, Respondent held Florida Educator's Certificate No. 999159, covering mathematics, which was valid through June 30, 2010. At all times material to this case, Respondent was employed at Freedom High School in Orange County, Florida. As a secondary teacher, Respondent was required to complete ESOL training. In order to meet the ESOL requirement, on or about January 14, 2008, Respondent enrolled in an ESOL class taught by Mr. Biggs. Mr. Biggs was a district compliance specialist who was fully approved to teach the ESOL class. He required that participants in the ESOL course attend all of the class sessions. The ESOL class requirements were: attendance at the 14 sessions, pre- and post-curriculum tests, completion of a portfolio of the course, and completion of a final evaluation of the course. Although enrolled in Mr. Biggs’ class, Respondent did not attend all of the class sessions. According to Mr. Biggs, Respondent left the class after the tenth session and did not return. In addition to missing the last sessions, Respondent did not turn in the portfolio or complete the evaluation of the course. Although Respondent maintained she had completed the portfolio, Mr. Biggs did not have record of such completion. In April 2009, Respondent was required to present a certificate that verified she had completed the aforementioned ESOL class. Although Respondent presented a certificate of completion for the ESOL course to school personnel, record of the credit for such completion could not be located. Eventually, it was discovered that Respondent did not have credit for the class because she had not completed the class and had not been given a certificate of completion by the instructor (Mr. Biggs). Thus, the issue of how Respondent could present a certificate of completion when none had been issued was raised by Orange County School District personnel. In fact, the certificate presented by Respondent lacked the Orange County Public School logo. In follow-up to this discovery, Respondent’s principal initiated a formal investigation to resolve the matter. When it was determined that Respondent could not produce a valid certificate of completion for the ESOL course, Respondent’s employment with the Orange County School District was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner and the Education Practices Commission enter a Final Order that suspends Respondent's teaching certificate for a period not to exceed one year. DONE AND ENTERED this 27th day of September, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2011. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Todd P. Resavage, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Caren Christine Olsen 2429 Shelby Circle Kissimmee, Florida 34743 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent's teaching certificate should be disciplined in accordance with Sections 231.262(6) and 231.28(1), Florida Statutes, for alleged acts of misconduct as set forth in the Amended Administrative Complaint, dated May 19, 1993, in violation of Sections 231.28(1), Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rule 6B-1.006, Florida Administrative Code.
Findings Of Fact The Respondent holds Florida Teaching Certificate No. 454394, covering the areas of Elementary Education, Junior High School Science, and Administration and Supervision, which is valid through June 30, 1994. At all times pertinent to the allegations in this case, Respondent was employed as a teacher at Lake Mary Elementary School in the Seminole County School District. On or about March 14, 1988, Respondent was arrested in Volusia County, Florida, and charged with Sexual Activity with a Child by a Person in Familial or Custodial Authority and Committing a Lewd and Lascivious Act in the Presence of a Child. A Felony Arrest Warrant for Respondent was issued by the Circuit Court of Volusia County, dated March 11, 1988. An Information was thereupon filed against Respondent in the case of State of Florida v. Larry O. Williams, Case No. 88-17776, and it charged Respondent with two (2) offenses: Count I: Sexual Activity with a Child by a Person in Familial or Custodial Authority, and Count II: Committing a Lewd and Lascivious Act in the Presence of a Child. The state issued a Nolle Prosequi to the charge of Sexual Activity with a Child. Respondent entered a plea of Nolo Contendere to the lesser included charge in Count II of Attempted Lewd or Lascivious Act in the Presence of a Child, a third degree felony. On or about April 16, 1990, Respondent was adjudicated guilty of Attempted Lewd or Lascivious Act in the Presence of a Child by the circuit court. He was sentenced to serve three (3) years probation, pay $41.00 per month for the cost of supervision, pay $225.00 in court costs and fines, and successfully complete sexual offender counseling. He was also ordered to have no further contact with the victim or any other individuals involved in the case. Detective Diana Floyd, with the Edgewater Police Department, was one of the detectives who assisted in the investigation of Respondent. The victim of the criminal activity by Respondent was Kristina Adkins. Detective Diana Floyd interviewed Kristina Adkins as part of her investigation on March 9, 1988. or about March 15, 1988, the Respondent was suspended with pay by the Seminole County Superintendent of Schools, Robert W. Hughes. On or about March 24, 1988, the Respondent was suspended without pay by the School Board of Seminole County. Respondent was on an annual contract, and his contract called for a renewal each year. The School Board, on or about March 24, 1988, decided not to renew his contract for the following school year. During the 1987-1988 school year, Naomi Whitker was a fifth grade student at Lake Mary Elementary School, and was frequently in Respondent's classroom because her best friend, Cristie Braddy, was a student in Respondent's class. At that time, Naomi Whitker was ten years of age. Naomi Whitker and Cristie Braddy would regularly assist in Respondent's classroom, generally after school. On a regular basis, Respondent would touch Naomi Whitker's buttocks and hug her while she was in his classroom. This occurred during the 1987-1988 school year at Lake Mary Elementary School. The student would put her arms around Respondent's waist, and he would put his hands around her back and then move them slowly down until he touched her buttocks. Naomi Whitker did not think that it was right for a teacher to touch her in that way, and she felt uncomfortable and confused. A similar incident occurred when Respondent hugged Naomi and grabbed her buttocks as he was dropping the two girls off after taking them to dance class. On one occasion in late February or early March, 1988, Naomi was hanging up something on Respondent's classroom wall, and was standing on a chair. Respondent came over, reached under her clothing, and put his hands on her stomach while he was holding her. As a result of this touching of Naomi's stomach, she turned and ran out of the class. She felt afraid, angry, and embarrassed. She did not tell him to stop, but was so afraid that she ran out of the room. On another occasion, Respondent invited Naomi Whitker, Cristie Braddy, and another girl out during the 1987-1988 school year to Monday night skate night, and to Show Biz Pizza thereafter. Respondent paid for the entire evening. As they were driving Respondent asked Cristie if she had any underwear on. Respondent also told Cristie that he was not wearing any underwear either. Cristie Braddy, a student in Respondent's fifth grade class at Lake Mary Elementary School in the 1987-1988 school year, and best friend of Naomi Whitker at that time, was touched by Respondent. He would rub Cristie's back and stomach and then go down to her buttocks. He would also rub her shoulders. Respondent also touched Cristie Braddy outside of the classroom, specifically at Show Biz Pizza, where he touched her back and shoulders. Also on a school sponsored camping trip he rubbed Cristie Braddy and touched her on the outside of her clothes, when he touched her back and shoulders, but on the inside when he touched her stomach. The touching of Cristie Braddy by Respondent occurred during the entire 1987-1988 school year, and was not an isolated incident. It occurred on a daily basis. On separate occasions, Respondent asked Naomi Whitker and Cristie Braddy to come over to his apartment, and help clean it. However, they declined. On another occasion, Respondent gave Naomi Whitker and Cristie Braddy a silver ring which said "love" on it. In handing the ring to Naomi and Cristie, Respondent said that he wanted them to have it because "I love you". Also during the 1987-1988 school year at Lake Mary Elementary School, Respondent invited Naomi Whitker and Cristie Braddy to the beach or to the mall with him, but they did not go with him. Respondent made inappropriate comments to students in his classroom. For example, he would talk about how he and his wife got divorced because she would not have sex with him. He would also look at Naomi, and say that she needed to shave her legs, or that she was in a bad mood because she was beginning her period. He would also ask about whether the girls were kissing boys. On another occasion in Respondent's fifth grade classroom at Lake Mary Elementary School, Cristie Braddy was sitting in the teacher's chair. Respondent came up from behind her and sat on the chair directly behind her with his legs spread around her. Cristie Braddy quickly jumped out of the chair and went to a different part of the room. Monica Graham, a student in Respondent's fifth grade elementary class at Lake Mary Elementary School in the 1987-1988 school year, was also touched by Respondent. Respondent touched Monica Graham inappropriately on the shoulders and buttocks on the outside of her clothing, and on one occasion, he pinched her buttocks. Monica Graham, as a result of the touching by Respondent, felt weird and embarrassed because he did it to her in front of the other students. She was also angry and hurt by Respondent touching her. On the same camping trip that Christie Braddy and Monica Graham attended, Respondent, who was a chaperon, told the girls on the camping trip that if they got scared at night, they could come sleep in his tent. Respondent invited Monica Graham to go swimming at his house, and one night asked if she wanted to come over and eat dinner with him. Monica Graham did not go because she told her parents, and they said it was inappropriate. Respondent gave Monica Graham his home phone number. He told Monica it was for help in homework, but when she called, he did not talk about homework. Tiffany Gormly, a fifth grade student in Respondent's fifth grade elementary school class at Lake Mary Elementary School during the 1987-1988 school year, was touched by Respondent. Respondent rubbed her shoulders, and tried to hold her hand. When Respondent tried to hold Tiffany Gormly's hand, she kicked him. As a result of Respondent's touching Tiffany Gormly, she felt uncomfortable and embarrassed. There were other students in front of her when Respondent rubbed her shoulders. She was angry, and told Respondent to stop. Respondent also invited Tiffany Gormly to come to his apartment and go swimming. It bothered her, and she did not go. On occasion, Respondent would look under the long table where students sat, as they watched movies in his classroom, and would try to look up the dresses of the girls.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Larry O. Williams is not guilty of violating the provisions of Sections 231.28(1)(c), Florida Statutes; but is guilty of violating Section 231.28(1)(e), Florida Statutes, for having been convicted of a felony; and is guilty of violating Sections 231.28(1)(f) and (h), Florida Statutes, and Rule 6B-1.006(3)(a), (e) and (h), Florida Administrative Code, due to his inappropriate touching and conduct with four of his students. It is further RECOMMENDED that a Final Order be issued revoking Respondent's teaching certificate for the above violations. DONE AND ENTERED this 24th day of November, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2215 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8 (in part), 9, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 56, 57, 58, 59, 60, 61, 62, 64, 65, 66, 68, 69, 72, 74, 75, 76, 86, 87, 88, 89, 90, 91, 92, 93, 96, 98, 99, 102, 103, 104, 105, 107, 111, 114, 116, 117. Rejected as hearsay: paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 43. Rejected as irrelevant or subsumed: paragraphs 7(in part), 8 (in part), 20, 38, 39, 40, 41, 45, 55, 63, 67, 70, 71, 77, 78, 79, 90, 81, 82, 83, 84, 85, 94, 95, 97, 100, 101, 106, 108, 109, 110, 112, 113, 115. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire BOND & BOYD, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Larry O. Williams 403 North Monroe Street Versailles, Missouri 65084 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent, a teacher and basketball coach, engaged in sexual misconduct, including lewd or lascivious molestation, with student athletes; if so, whether disciplinary action, up to and including permanent revocation, should be taken against his educator certificate.
Findings Of Fact Respondent Javier Cuenca ("Cuenca") holds Florida Educator Certificate 958539, which covers the areas of educational leadership, mathematics, and physical education and is valid through June 30, 2022. During the time relevant to this case, Cuenca worked as a teacher in the Miami-Dade County Public School District ("District"). For the 2011-2012 school year, Cuenca was employed by Mater Academy, a charter School in Hialeah Gardens, Florida, after which he took a yearlong leave of absence from the District to work for a private company as a tutor. Otherwise, Cuenca taught in traditional public schools. In addition to teaching, Cuenca served as a basketball coach at several schools, including Hialeah Gardens Middle School and Hialeah Gardens Senior High School. Cuenca continued coaching for these schools on a part-time basis even while on leave from his teaching position. Cuenca's employment with the District ended on November 7, 2013, simultaneously with the commencement of an investigation into allegations that he had engaged in sexual misconduct with male students on the basketball teams he coached. The facts giving rise to these allegations are relevant to some of the instant charges against Cuenca and will be addressed further below in this Recommended Order. Cuenca was arrested in 2014 and charged under three separate criminal informations with multiple felonies arising from allegations of lewd or lascivious child molestation. The alleged victims were Students D.N., D.F., and R.D., each of whom was a basketball player coached by Cuenca. Later, a fourth criminal information was filed, charging Cuenca with lewd or lascivious conduct against O.Q., another student athlete whom Cuenca had coached. On October 4, 2016, Cuenca accepted a deal under which he agreed to plead nolo contendere to the reduced charge of felony battery in the cases involving D.F. and O.Q., which would be consolidated in the process, in exchange for the dismissal of the cases involving D.N. and R.D. Accepting the plea that same day, the Circuit Court of the Eleventh Judicial Circuit, Miami- Dade County, immediately entered a Finding of Guilt and Order of Withholding Adjudication/Special Conditions.2/ Cuenca was placed on probation for a period of two years. The upshot is that Cuenca has a criminal record comprising a pair of felony batteries committed, on separate occasions, against two student athletes. At the same time, however, Cuenca was not "found guilty" by a jury; was not adjudicated guilty by the court; and did not plead guilty to, or otherwise admit committing, these crimes. In short, strange as it might seem, Cuenca——who was sentenced and punished as a felon——is not a convicted felon. As we will see, moreover, although entering a plea of nolo contendere to a criminal charge is a disciplinable offense under current law, the statute in effect at the time Cuenca entered his plea did not authorize the Education Practices Commission ("EPC") to discipline a teacher for pleading no contest to a crime. If Cuenca has committed a disciplinable offense, it is because of his conduct leading to the criminal proceedings, not his criminal background per se. The evidence of underlying wrongdoing in this case concerns Cuenca's interactions with three players, O.Q., D.N., and D.F. The most serious allegations involve O.Q., a young man who, unlike D.N., D.F., and Cuenca himself, appeared at hearing to testify, rather than testifying via deposition as did the others. O.Q. testified credibly that, when he was between the ages of 15 and 16, his basketball coach, Cuenca, had "inappropriately touched" him on multiple occasions. O.Q. was unable to remember how many times. There was "one incident," however, which stands out in O.Q.'s mind as the "main incident" that will "stay with [him] for the rest of [his] life." O.Q. says that this incident is "constantly on the back of [his] mind," having left a "scar," which "haunts" him "[e]ven though it was years ago." For O.Q., it is "embarrassing even to mention or speak about" this incident. The incident happened at Cuenca's house, in "his room." According to O.Q., on this particular occasion, Cuenca grabbed and fondled O.Q.'s penis, for the purpose of masturbating O.Q., which he did.3/ The undersigned believes O.Q. and finds that this incident did, in fact, take place as O.Q. described it.4/ As a practical matter, this finding, alone, is dispositive because, obviously, a teacher found to have masturbated a 16-year-old student will be guilty of one or more disciplinable offenses sufficient to revoke his or her certificate. Here, the Commissioner has proved additional acts of misconduct involving D.N. and D.F., which should be addressed nonetheless, if for no other reason than to reinforce the inevitable outcome. Cuenca's modus operandi for exploiting his relationships with these players relied on his authority as a coach to pressure them into exposing themselves. He frequently asked them questions to determine whether they were sexually active, ostensibly to urge abstinence and warn against becoming involved in situations that might interfere with school work and athletics. To some extent, these conversations were unobjectionable. Coaches should not be discouraged from counseling student athletes about age-appropriate sexual behavior. Cuenca, however, overreached. Using the abstinence angle as a pretext, Cuenca pestered the players to show him their "virgin lines." There is, of course, no such thing as a "virgin line." Cuenca used this mumbo jumbo to trick his young players into believing that there is some sort of physical mark of virginity visible on the penis. Cuenca constantly demanded to see this "proof" of virginity to confirm that his players were not misbehaving. Another approach that Cuenca used was the offer of steroids, which athletes sometimes take illicitly to gain muscle mass and improve their performance. Cuenca told the boys that he needed to examine their genitals to ascertain their steroid readiness.5/ If they refused, Cuenca used the stick of retaliation, such as the threat of reduced playing time or expulsion from the team. Cuenca used these methods on D.N. and D.F. In February 2013, Cuenca succeeded in convincing D.N., then a junior in high school, to drop his shorts while the two were alone together in the weight room. Cuenca stared at D.N.'s penis and testicles, and declared that D.N. soon would be ready for steroids.6/ For D.F., the violation occurred in October 2012, when he was a 15-year-old freshman. Under the guise of inspecting D.F.'s "virgin line," and to gauge his readiness for steroids, Cuenca directed D.F. to sit on a table in an empty classroom for an examination. D.F. pulled down his pants, Cuenca took a look, and then he reached in to touch D.F.'s genitals. D.F. slapped Cuenca's hand, and Cuenca withdrew. In D.F.'s words, which the undersigned credits as truthful and telling, the incident left D.F. "in a dark place," "depressed," and "sad," and "nothing has been the same [for him] since" this happened. The Charges In the Amended Administrative Complaint against Cuenca, the Commissioner accused Cuenca of having committed six disciplinable offenses, namely those defined in subsections (1)(d), (1)(f), and (1)(g) of section 1012.795, Florida Statutes; and violations of subsections (2)(a)1., (2)(a)5., and (2)(a)8. of Florida Administrative Code Rule 6A-10.081, which are part of the Principles of Professional Conduct for the Education Profession in Florida.7/ If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under section 1012.795(1)(j). It is determined as a matter of ultimate fact that Cuenca is guilty of gross immorality, which is an offense punishable under section 1012.795(1)(d); and that he exploited his relationships with O.Q., D.N., and D.F. for personal gain or advantage, namely sexual gratification, in violation of rule 6A-10.081(2)(a)8., which is an offense punishable under section 1012.795(1)(j). It is further determined that Cuenca is not guilty of having been convicted or found guilty of, or of having pleaded guilty to, any criminal charge; such a criminal record, if established, would have constituted a disciplinable offense under section 1012.795(1)(f), Florida Statutes (2016). As for the remaining charges, to determine Cuenca's guilt or nonguilt would require the undersigned to explicate the meaning of statutory and rule provisions whose applicability to the facts at hand is not readily apparent. Because there are ample grounds for permanently revoking Cuenca's educator certificate without these additional legal conclusions, the undersigned makes no findings of ultimate fact regarding Cuenca's alleged violations of section 1012.795(1)(g) and rules 6A-10.081(2)(a)1. and 5. If the EPC determines that such findings are necessary, it may remand this case to the undersigned for the entry of a supplemental recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order permanently revoking Cuenca's educator certificate and deeming him forever ineligible to apply for a new certificate in the State of Florida. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019.
The Issue Whether Respondent committed offenses, as set forth in the Administrative Complaint, sufficient to justify the imposition of discipline with regard to Respondent's Florida educator's certificate, and if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 720360, covering the area of business education, and was employed in the Santa Rosa County School system during the 2000-2001 school term as a business education teacher at Milton High School. Student S.B. was born April 19, 1983, and attended Milton High School for four years. During that time, she knew Respondent as a teacher and coach at the school. As a senior during the Fall of 2001-2002 school year, S.B. and her friend, J.N., another female student, called Respondent on the telephone as a joke. They told him they were coming to see him at his house. He said okay. That night, as the two female students left Respondent's home after staying about an hour, Respondent kissed S.B. on the mouth. Later, Respondent called S.B. at her home or placed calls to her cellular telephone on several occasions. S.B. also called Respondent. Sometimes, these telephone calls lasted for an hour or more. During the 2000-2001 school year, S.B. visited Respondent at his home on at least four and possible as much as six different occasions. Each visit occurred in the evening at Respondent's home when S.B. and Respondent were the only persons present. Respondent was a 33-year-old teacher and S.B., a 17-year-old student. Respondent and S.B. kissed and embraced each other on each of the visits by S.B. to Respondent's home. On the last visit, Respondent removed S.B.'s shirt, fondled her breasts through her bra and touched her vaginal area through her clothing. Respondent laid on top of S.B. and pressed his penis against her vagina through their clothing. Respondent professed his love for S.B. and talked to her about a future together following her graduation from high school. Respondent and S.B.'s relationship became the subject of rumors at Milton High School in March of 2001. Approximately three teachers had conversations with the Milton High School assistant principal that something was going on between S.B. and Respondent. The assistant principal confronted Respondent on March 16, 2001. Respondent denied any involvement with the two female students, S.B. and J.N., beyond two visits with them at his home where, he claimed, nothing happened between him and S.B. The assistant principal spoke with S.B. on March 16, 2001, and again confronted Respondent. This time, Respondent confessed to the relationship. He admitted to three or four occasions when he had kissed S.B. in the course of her visits to his house and that he had rubbed her breasts over her shirt. Respondent's improper conduct with S.B. became common knowledge among faculty, parents, and students at Milton High School. As a result of his admitted misconduct with S.B., the Santa Rosa County School District suspended Respondent on April 12, 2001, and that suspension continues in effect pending the outcome of this proceeding. Respondent's actions with regard to S.B. is immoral. A 33-year-old male teacher kissing, fondling, and hugging a 17-year-old student is an act of moral turpitude. Respondent's involvement with S.B. and the resulting publicity have seriously reduced Respondent's effectiveness as a teacher. Respondent's conduct and actions with S.B. exposed the student to conditions which were, or could have been, harmful to her mental and physical health. Respondent's actions knowingly and intentionally exposed S.B. to unnecessary embarrassment and disparagement. Respondent exploited his relationship with S.B. for personal gain. Respondent carried on a romantic relationship with a 17-year-old girl in order to satisfy his own romantic and sexual desires.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses set forth in the Administrative Complaint and revoking Respondent's Florida Educator Certificate No. 720360. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in conduct that violated section 1012.795(1)(j), Florida Statutes, and/or Florida Administrative Code 1 All references to chapter 120, Florida Statutes, are to the 2020 codification. Rule 6A-10.081(2)(a)1., and if so, what is the appropriate penalty to be imposed against her Florida Educator's Certificate.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate, and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator Certificate No. 717826, which is valid through June 30, 2025, and covers the area of physical education (PE"). As of February 28, 2018, the date on which the conduct giving rise to this proceeding occurred, Respondent was employed by Petitioner in a partial assignment as a PE teacher at Coral Gables Preparatory Academy ("CGPA"), formerly known as Coral Gables Elementary School, within the Miami-Dade County School District ("District"). Respondent was simultaneously employed in a partial teaching assignment at a different school in the District. The Administrative Complaint The Administrative Complaint charges Respondent with having engaged in inappropriate conduct on February 28, 2018, consisting of throwing students' book bags, resulting in damage to electronic devices that were in the book bags. The Administrative Complaint alleges that the damage to the electronic devices was over $2,000.00. Count 1 of the Administrative Complaint charges Respondent with having violated section 1012.795(1)(j)3 by having violated the Principles of Professional Conduct for the Education Profession adopted by the State Board of Education. Count 2 of the Administrative Complaint charges Respondent with having violated rule 6A-10.081(2)(a)1.,4 by having failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Evidence Adduced at the Hearing As noted above, the incident giving rise to this proceeding occurred on February 28, 2018, at CGPA. At the time of the incident, some students were on their way out to the athletic field outside of the school for PE class, while others were on their way out to the field for recess. An indeterminate number of students left their bookbags in the walkway near the exit door to the field, despite previously having been told by Respondent to place their bookbags against a wall adjacent to the walkway in order to ensure that no one tripped over bookbags. Respondent moved the bookbags out of the walkway by "tossing" or "throwing" them.5 There is conflicting evidence regarding the force with which Respondent moved the bookbags. 3 All references to chapter 1012, Florida Statutes, are to the 2017 codification, which was in effect at the time of the alleged conduct giving rise to this proceeding. See Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)(law in effect at time of alleged violations applies in disciplinary proceedings). 4 The version of rule 6A-10.081 that was adopted by the State Board of Education on March 23, 2016, was in effect at the time of the conduct giving rise to this proceeding, and, therefore, applies to this proceeding. See Orasan, 668 So. 2d at 1063. 5 A key issue disputed by the parties is whether Respondent "tossed" or "threw" the bookbags. This dispute appears to center around Respondent's culpability because, presumably, if she "threw" them, she did so in anger, without regard to whether the contents would be damaged, thereby warranting a more severe penalty than if she had merely Student J.R. credibly testified that he saw Respondent "furiously" throwing the bookbags, including his bookbag. He testified that as a result of Respondent's actions, his iPhone, which was in the bookbag, was broken and had to be replaced. A photograph that was admitted as part of Petitioner's Exhibit No. 8 depicts J.R.'s iPhone with the glass having been shattered. J.R.'s signature and "3/14/18," the date on which he was interviewed as part of the District's investigation of the incident, are written below the photograph. J.R. also testified that his glasses, which were in his bookbag, also were damaged as a result of Respondent's conduct.6 Another student, H.B., testified, credibly, that she witnessed Respondent throwing the bookbags "really hard." She testified that as a result, her iPad and her brother's iPad, both of which were in her bookbag, were broken. Two photographs that were admitted as part of Petitioner's Exhibit No. 8 depict the damaged iPads. H.B.'s signature and the date of March 14, 2018, the date on which she was interviewed as part of the District's investigation of the incident, are written below the photographs. A.A. also testified that she saw Respondent throwing the bookbags, and that Respondent threw her bookbag with such force that it broke her water bottle, which was inside the bookbag. A.A. testified that this upset her, because the water bottle was her favorite one.7 Salvatore Schiavone, the former principal of Southside Elementary School ("SES"), testified on behalf of Respondent. Respondent is assigned to "tossed" them, and the damage to the electronics was accidental. The undersigned does not find this label dispositive of the penalty imposed in this proceeding. 6 Because the Administrative Complaint does not charge Respondent with having damaged students' property other than electronic devices, damage to J.R.'s glasses cannot form the basis of discipline in this proceeding. However, the fact that J.R.'s glasses were damaged is probative regarding the force with which Respondent threw the bookbags. 7 See footnote 3, above. Damage to A.A.'s water bottle cannot form the basis of discipline in this proceeding because it was not charged in the Administrative Complaint. However, the fact that her water bottle was broken as a result of Respondent having thrown her bookbag is probative regarding the force with which Respondent threw the bookbags. SES, and was so assigned during the time period of 2006 through 2017, when Schiavone was principal. Schiavone testified, credibly, that he viewed Respondent as "the consummate professional" and an outstanding teacher; that he had never observed her having anger issues or causing property damage; and that she was very well-liked by her students. Respondent testified that on the day of the incident, students from four classes were entering and exiting the sole doorway to and from the athletic field, and that many of them had thrown their bookbags in a pile in the walkway. She asked them more than once to move the bookbags, but most of them did not do so, so she, with help from a few students, moved them from the walkway to against the wall adjacent to the doorway exit to the athletic field. She testified, credibly, that she did not know electronic devices were in the bookbags. She denied smashing the bookbags on the ground and intentionally damaging students' property. Respondent entered into an agreement with the District under which she received a written reprimand and agreed to pay $558.00 in restitution for the damage to the electronic devices. Respondent has taught for over 27 years and has not previously been subjected to discipline. Findings of Ultimate Fact The evidence clearly and convincingly establishes that Respondent threw some students' bookbags with sufficient force to damage electronic devices inside the bookbags. This determination is based on the credible testimony of the students who testified at the final hearing. Respondent moved the bookbags from the walkway, where students were entering through, and exiting from, a doorway between the inside corridor and the outside athletic field. The evidence clearly and convincingly establishes that the bookbags had been piled in a location where they posed a potential tripping hazard. However, even if the bookbags were obstructing the walkway and presented a potential tripping hazard, and notwithstanding that Respondent had told the students to place their bookbags against the wall, that did not justify Respondent throwing the bookbags with the amount of force sufficient to damage the contents in some of the bags. Thus, the evidence clearly and convincingly establishes that in moving students' bookbags with sufficient force to damage electronic devices inside the bookbags, Respondent failed to make reasonable effort to protect the students from conditions harmful to students' mental health and safety. To this point, as discussed above, the evidence establishes that at least some of the students were distressed as a result of their electronic devices being damaged. Thus, the evidence clearly and convincingly establishes that Respondent violated rule 6A-10.081(2)(a)1. As a result of having violated rule 6A-10.081(2)(a)1., Respondent violated section 1012.795(1)(j). However, the evidence clearly and convincingly establishes that Respondent did not know that students' electronic devices were in some of the bookbags that were thrown, and the evidence does not establish that Respondent intended to damage students' property. Additionally, the evidence does not clearly and convincingly establish that Respondent's actions caused over $2,000.00 worth of damage to the electronic devices in students' bookbags. Although the evidence clearly and convincingly establishes that Respondent's actions damaged some students' electronic devices, no competent evidence was presented regarding the value of the damaged electronic devices. There was no evidence presented showing that students' physical health or safety was in any way harmed or adversely affected by Respondent's actions in throwing the bookbags.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, pursuant to section 1012.796, the Education Practices Commission issue a written reprimand to Respondent, with a copy placed in her certification file, pursuant to section 1012.796(7)(f). DONE AND ENTERED this 17th day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2021. COPIES FURNISHED: Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Peter Caldwell, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
